Public Bill Committee

[Mr. Eric Illsley in the Chair]

Clause 19

Points-based applications: no new evidence on appeal

James Clappison: I beg to move amendment No. 53, in clause 19, page 11, leave out lines 4 to 8.
We now return to the question of appeals under the points-based system, which was where we left off on Tuesday evening. The clause is a new aspect of those appeals. As members of the Committee will recall, it deals with appeals under the points-based system and, in particular, what sorts of evidence may be adduced on appeal.
The amendment relates to proposed new section 85A(4)(d), under which evidence that would challenge the Secretary of State’s discretion to refuse an application under a points-based system, and in particular to do so on grounds not related to the acquisition of points, would be allowed to be adduced on appeal. There are two purposes to the amendment, which would delete that proposed paragraph. The first is to ask how far the points-based system will extend, and therefore how far the appeals provisions will extend. In asking that I bear in mind the problems that have been encountered in the appeals system: a huge volume of appeals in certain categories, a backlog of appeals, a disjunction between the working of the asylum and immigration tribunal and posts overseas, long delays and many other problems. It is a relevant question to pose.
The Government have published their proposals for the points-based system, but I understand that they are not entirely cast in stone. I would like to know how far the system will extend. It seems evident from the Government’s papers that it will apply to work permits, including those with an entitlement to settlement, which are an important feature of the work permits system and are overlooked. When one talks about work permits it is not always understood that permits of certain categories carry the entitlement to reside in the United Kingdom or to become a UK citizen after four or five years of residence. That is an important fact but it is not always taken into account. The question is not just of work permits but of entitlement to settlement and therefore economic migration.
It is clear that the appeals system will cover work permits, but will it extend, for example, to students applying to study in the United Kingdom? How will they be dealt with? Will they be part of the points system and, if so, will they therefore be able to appeal under these provisions? Will evidence be able to be adduced on appeal about a student studying in the United Kingdom? I would like to know how far the provisions will extend and what applications they will cover.
 The second purpose of the amendment is to register support for the judgment of immigration officers as an exercise of discretion when it is appealed against under these provisions. That seems to be what proposed paragraph (d) is getting at—giving the right to appeal against the discretion of the Secretary of State as exercised by immigration officers. I pray in aid the important evidence that we heard from Migrationwatch UK about the importance of the judgment of immigration officers. I remind the Committee that I asked a question specifically related to the amendment, and Sir Andrew Green told us about the judgment of immigration officers. He said:
“That judgment is absolutely essential. I think appeals against that judgment should not be allowed. It is turning into a legal nightmare.”——[Official Report, UK Borders Public Bill Committee, 13 March 2007; c. 277, Q331.]
I can also pray in aid what the Minister himself said in an earlier debate about the importance of the judgment of immigration officers. There was an element of consensus, at least between him and myself, on what a good job immigration officers do and how important a part of that job is their judgment. In support of the amendment, I quote what the Minister said to the Committee:
“putting feet on the ground is not enough if those officers do not have the power or the tools to do their job effectively in the 21st century.”——[Official Report, UK Borders Public Bill Committee, 6 March 2007; c. 163.]
I believe that a large part of the power of immigration officers is the power to exercise their discretion. Removing much of that discretion, in effect, changes the role of immigration officers and takes away much of their power. I think that the Minister and I were at one on that, but I would like to hear a response.
In other documents about the proposals for a points-based system, Ministers have spoken of the clarity and objectivity of such a system, but there does not seem to be a lot about the judgment of immigration officers. I would suggest that that judgment is so valuable, because it is formed from experience of conditions on the ground, at post, based on local knowledge, and in the case of the applications that we are dealing with—for work permits and other types of leave to remain or enter—presumably the immigration officer has had the opportunity to see the applicant. An immigration officer in such a post knows the local conditions and the problems that there can be generally, and specifically to certain countries. The immigration officer then exercises his judgment on the basis of that local knowledge and possibly after having had the opportunity to see the applicant.
Appeals against the judgment of the officer will go to the asylum and immigration tribunal, which sits at Taylor house on Rosebery avenue in Farringdon, well away from the conditions that immigration officers face daily. The tribunal will not have the local knowledge or the experience of the officer. Sir Andrew Green speculated that it may well be, apparently, that members of the tribunal will not even have visited the country in question; and presumably they will not have the opportunity to see or question the applicant. Wondering aloud, how can one sensibly say that an asylum and immigration tribunal sitting in London can exercise discretion better than an immigration officer on the ground? How can the tribunal sensibly challenge such discretion? However, that is what the clause appears to do.
I would like an answer to a specific question. Can the asylum and immigration tribunal just look at the same circumstances with which the immigration officer was confronted, or can the appellant, in support of an appeal, present new evidence—not seen by the immigration officer—to the tribunal? As I understand section 85 of the Nationality, Immigration and Asylum Act 2002, which deals with appeals under the present system, that is not allowed. The asylum and immigration tribunal can only take into account circumstances appertaining at the time of the decision to refuse. Under the proposed subsection, will the asylum and immigration tribunal be able to look at new circumstances? That is an important question, to which I should like an answer. My view is that one should trust immigration officers on the ground, rather than allow their judgment to be challenged. I look forward to the Under-Secretary’s response.
Many other issues surrounding the points-based system more generally, come into play in determining how many such appeals are likely. There are lots of issues about how high the bar will be set in the points-based system for what the Government describe as highly skilled migrants. Just how highly skilled will they be? How much demand will there be for the work of skilled workers in tier 2? How wide will be the range of occupations for skilled workers covered by the Government’s points-based system? All are relevant to the question of how many such appeals there are likely to be. Those might be matters for another day, but I should like a response from the Under-Secretary to the points that I have raised now.

Joan Ryan: I welcome the opportunity to discuss the matter, so I am pleased that the hon. Member for Hertsmere has tabled an amendment that touches on issues that will benefit from discussion and clarification.
Let me make a few general comments. Under the points-based system, applicants must prove their entitlement to points by producing, as part of their applications, pieces of evidence specified in the immigration rules and accompanying guidance. That obligation is new to our immigration system, and it is an essential part of the new, objective points-based system. We believe that that requirement will benefit applicants because, unlike now, they will know exactly what they need to provide in order for their applications to succeed. It is, therefore, fair to expect them to supply that evidence up front, with their applications, rather than allowing them to submit it later or even with their appeal papers, as they can now. For that reason, I believe that appellants making appeals under the points-based system should be entitled to ask the asylum and immigration tribunal to consider only evidence that was submitted with their original application. The tribunal will be allowed to consider new post-application evidence only in narrowly defined circumstances, for the sake of fairness and in order to comply with our international obligations.

James Clappison: I am tempted to ask what those circumstances will be. What are the international obligations that the Minister mentions? As Sir Andrew Green reminded us, we are talking about people applying from abroad to come to this country; not UK citizens or people who happen to be in this country.

Joan Ryan: It might be helpful if I remind the Committee that we are talking only about in-country appeals under the points-based system. Under that system, there will be no appeal in relation to out-of-country applications, because if one of those applications is refused a new application will be made. It is important to remember that the measures apply to in-country appeals relating to points-based applications. The obligations that I refer to relate to justice. Later I shall cite some specific examples that will, I hope, illuminate the circumstances in which new evidence on appeal will be allowed.
In order to avoid injustice, the new provisions for appeals must come with appropriate safeguards. Everybody who is refused leave to enter or remain and who has a right of appeal under existing legislation will continue to have that right. This clause simply restricts the evidence that can be presented at an appeal against the refusal of an application under the points-based system.
New evidence will always be allowed where it is presented in support of an appeal brought on the grounds that the decision was racially discriminatory or in breach of the appellant’s right under the European Community treaties, the refugee convention or human rights legislation. New evidence will also be allowed in cases in which the Home Office alleges that a document that has been provided with an application is forged or not genuine. The applicant might not be aware that that is an issue until the allegation is made, so it gives him or her a chance to clear his or her name.

Damian Green: The Under-Secretary is specifying categories of appeal in which new evidence will be allowed. Can she clarify who will decide whether an appeal comes into one of those categories? That will clearly be an important measure of how fair and independent the system will look to the appellant.

Joan Ryan: Indeed. That is an important point, and I shall come to it in a moment.
It is clear that if we suspect that a document is forged, the applicant cannot know that allegation in advance, so he or she should have the right to question it.

James Clappison: Who will be looking at the document to see whether it is forged, for the purposes of these appeals?

Joan Ryan: I will come to that question in a moment when I reply to the hon. Member for Ashford.
To finish the point that I was making, for the same reason that applies to the forged documents the clause will also allow an appellant to submit new evidence in order to contest a reason for refusal that does not relate to his or her entitlement to points under the points-based system. That is designed to avoid injustice, for example in a case in which an appellant has enough points to qualify for leave but is refused because, according to the immigration and nationality directorate’s records, he has a criminal conviction that makes his presence here undesirable.
 The appellant might want to provide evidence that the conviction relates to someone else and not to him; he may have to submit that evidence after he has been refused, because he may not know about the alleged conviction until the refusal. Those are the types of circumstances in which we would expect to be able to allow new evidence. The tribunal will decide whether evidence comes within the exception.
The hon. Member for Hertsmere asked how far the points-based system will extend. It will extend through all five tiers: skilled workers and business people; skilled workers with work permits; unskilled workers; students; and youth mobility and temporary workers.
The hon. Gentleman also asked about the presence of appellants at appeals, but as the proposal applies only to in-country appeals it is always possible, if not desirable, for the appellant to be present at the appeal and nothing should stand in the way of that.

James Clappison: I should like some clarification. The hon. Lady keeps talking about in-country appeals to the asylum and immigration tribunal, but these are applications for work permits or student visas that will have been made by someone overseas who has been refused permission to come to this country. The hon. Lady shakes her head; perhaps she can explain the circumstances to which she refers.

Joan Ryan: These are applications under the points-based system by people who are already here and who have leave to remain that is approaching its expiry date. They must make their application in time; these are not applications from people out of country overseas who wish to apply for entry clearance under the points-based system to work here.

James Clappison: On what basis are these people in the country? Where in the Bill does it establish that these are only in-country rights of appeal rather than appeals for anyone who applies on a points-based system, which one imagines will be the vast majority of people who apply? The Government envisage in their own paper that it is for people who want to apply for work permits or student visas from overseas.

Joan Ryan: In our document on the points-based system it is clear that there is no right of appeal for people overseas applying for entry clearance under that system. Their right is simply to reapply; the right of appeal only applies in-country for those whose leave is about to expire. That could involve anyone who has leave to be here, to work or study, who comes within the five tiers of the points-based system.
As is the case now, people must apply for further leave to remain if their leave is moving towards expiry. What we are referring to are in-country applications for an extension to existing leave. Out-of-country appeals for clearance under the points-based system are removed by section 4 of the Immigration, Asylum and Nationality Act 2006, rather than by this Bill.

Damian Green: I am grateful to the Under-Secretary, who has been very generous in giving way. However, she will recognise that there are important matters here that need clarification. Can she give the Committee an estimate of how much extra pressure this measure will put on the already creaking asylum and immigration tribunals? If it is the case, as the Minister has just explained, that it is going to be a mode of appeal for in-country appeals—for people who are already here—and they will all go through the tribunals, how much extra work will be put on that system?

Joan Ryan: If the hon. Gentleman thinks through how the system will work, he will find that this measure will have the opposite effect. It will lift the pressure and make a more streamlined and speedier system, which will be to the benefit of all: those who apply; those who deal with the appeals; and in fact employers, colleges and others, who will benefit from a speedy system and from knowing who will be given extension to their leave and who will not.
Just to backtrack a little bit, there was one other point that the hon. Member for Hertsmere put to me, about who will decide whether a document is forged. It is for the asylum and immigration tribunal to decide whether an appeal is allowed, so it would have to decide whether a document is valid or not.
This measure is not a new right of appeal, so there is no reason why it would add extra pressure to the system and every reason why it would reduce pressure. It restricts evidence that already exists from being submitted at appeals. It will be a beneficial measure.
The amendment has illuminated some of the issues and I hope that it has clarified how this measure would operate and to whom it would apply. However, I cannot accept the amendment for the reasons that I have given—reasons of justice regarding the appellant being refused on the basis that I have explained. I can assure the hon. Gentleman that this matter is narrowly defined and that the point of the measures is to ensure that no new evidence will be submitted to appeals, unless it falls within those narrowly defined instances.
With that, I ask the hon. Gentleman to withdraw his amendment.

James Clappison: I want to reflect on what the Under-Secretary has said, but there is one matter that I am unhappy about, which is what she was telling us about fraud and decisions on fraudulent documents. That is because, sad to say, in some posts in particular—although this could also be a general problem—there is a huge problem with fraudulent applications.
 The same fraudulent documents may be used in applications made in this country that then go to the asylum and immigration tribunal. Those fraudulent documents—educational qualifications, professional qualifications or documents showing work experience—can be extremely sophisticated and it requires a great deal of training of immigration officers in their posts to be able to spot the difference between one type of forgery and another. To ask the asylum and immigration tribunal to be able to judge documents from so many different countries and to develop the expertise necessary to sort out the fraudulent documents is asking a great deal of that tribunal sitting in Finsbury Park. I am unhappy about that, because I prefer to rely on decisions that are taken by people who have more experience of identifying these fraudulent documents.
I hope that I have laid down a marker in the remarks that I have made, that I place great reliance on the judgment of immigration officers. However, because I shall want further clarification on this matter, I shall be asking for leave to withdraw the amendment.
My only other point is that I have been talking about people whose applications should be turned down. I do not want to lose sight of the fact that the applications of an enormous number of people who seek leave to come to this country should be granted. I am thinking particularly of students, because it is important that some students come to this country to study—it is of benefit to them, to their country and to this country—but there must be strict control over them and a careful sifting of applications. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Damian Green: I beg to move amendment No. 90, in clause 19, page 11, line 11, at end add—
‘(3) The Secretary of State shall lay before Parliament, not more than 12 months after the commencement of the provisions under this section, a report on their operation.’.
The amendment attempts to give Parliament a handle on how the clause will operate in the real world. I want to put it in the context of a letter that I received from a legal practitioner in the field who, for her sake, had better remain anonymous. She makes a point about the clause and its attempt to make the points-based system faster and more automatic, and to give some framework for appeals under it. She states:
“At the moment the quality of decisions on the only points based category”—
the highly skilled migrant programme—
“is terrible, with many decisions being overturned and many decisions being seemingly arbitrary, with the issued guidance being totally inadequate. If this scheme is to be rolled out across the whole of the managed migration programme, then initial decisions MUST be better, and guidance MUST be clearer. To refuse further documentation to be sent effectively means that applicants will have to hire legal representatives to assist, and that costs will be driven up further.”
That evidence from the workplace is based on the experience of a current legal practitioner in the field who suspects that the measure will drive up costs and will require more people to take expensive professional legal advice.
I hope that Ministers will pause briefly and consider amendment No. 90. If that practitioner is right, and trouble is being stored up by the provisions, it is all the more important that Parliament should have an opportunity fairly quickly after their commencement to receive a report on their operation. In previous debates, Conservative Members have made the point that we wish generally to improve the accountability of the Executive to Parliament—indeed, the Minister expressed some sympathy with that desire. It is particularly important in respect of this part of the Bill, which will obviously have a direct impact on people’s ability to stay in this country. We have heard that it will specifically affect those who are already here and who are applying to remain under the new points-based system. This area of immigration policy is as sensitive as any, and therefore it is all the more important that we should know what happens. Parliament needs to be assured that Ministers have the balance right between our desire for a robust system and our desire for a fair one.
 The practical effects of amendment No. 90 would be relatively modest. It is surely not too much to ask the Secretary of State to come before Parliament and explain to us the actual workings of the legislation. The amendment asks for a report not more than 12 months after commencement, and I would hope that it would become a regular feature. I suspect that, in the long term, it might give pause to those Departments that seek to pour out new legislation every Session if a significant part of the ministerial work load were to involve reporting back on previous legislation and on what had gone wrong with it. It would be an interesting exercise for Ministers to go through the various immigration Acts and explain why some parts of them are in operation and others still are not. That would apply even more to the Home Office’s plethora of criminal justice legislation, some of which lies unused on the statute book for years after introduction—but I am conscious that I am going wide of the amendment. However, I commend to Ministers that proposal as a way in which to improve the long-term performance of the Department and the ability of Parliament to do its job properly.

Paul Rowen: I rise to support the hon. Gentleman’s proposal. We heard earlier from the Minister, who said that he was proposing to set up the IND differently and to subject it to regulation by Parliament. I welcome that. Certainly, anything that makes the immigration process more transparent and subject to parliamentary reporting must be welcomed. We are talking about a points-based system that, as has been said, is used only in one area at the moment, and so is new and relatively untried. During our discussions on earlier amendments, we debated changes that would have allowed new evidence to be used in certain circumstances, but the Minister did not accept them. However, we need to know fairly soon after the clause comes into operation how it is proceeding. An annual report, given the new regulatory framework that the Minister will set up for the IND, would be good practice and would give hon. Members confidence that the IND was on the road to recovery.

James Clappison: I, too, welcome this important amendment. It is very difficult to talk about clause 19 and the appeals system without talking about the points-based system as a whole. I think that the Minister conceded that point in his opening remarks. We need to look at how much pressure will be on the appeals system and, therefore, how many applications there will be under the points-based system.
Will the Under-Secretary say a few words about the nature of the points-based system? In particular, how high is the bar for qualification for those described as highly-skilled migrants? Are the Government thinking in terms of the table set out in their points-based system document, which explains how applicants can acquire the necessary points to enter the United Kingdom? Under such a system, it would be quite easy to construct scenarios in which people in their mid-20s—they could be as old as 27—with degree-level qualifications and earnings in their own country comparable to those of graduates in this country could qualify. It appears that a very large number of people could qualify as highly-skilled migrants—that is how the Government choose to describe them. A very significant number of people could qualify, particularly, one suspects, from developing countries and countries with income levels much lower than ours. 
There is also the question of what the Government describe as skilled workers, who can be recruited from overseas to come and work here if there is a shortage in those occupations. We need to hear from the Government about how long the list is of occupations that would be covered. We heard, I think, in the evidence from the trade unionists how active agencies can be in recruiting from overseas on behalf of employers in this country. We had a recent example of how extensive that recruitment can be with the Government’s recruitment to the national health service. Since 2000, the Government have recruited 50,000 doctors and nurses—3,000 doctors and 47,000 nurses—from Africa. That is a substantial number. They have all come here under the Government’s programme. One suspects that many have come as a result of recruitment by agencies, which raises a number of issues, not least the effect on the African countries. That is possibly an issue for another day; I have asked the Secretary of State for International Development about it and I was not entirely convinced by his answer, which was that more infrastructure was needed in Africa; more hospitals needed to be built and more training programmes needed to be run. That is a lot to ask of African countries where incomes and gross domestic product are a fraction of those in this country.
There is also the issue of economic migration to this country. The Government have presided over—I use that neutral phrase—a period of significant economic migration through the work permit programme. As the Minister told me in a recent written answer, the number of people in receipt of work permits that carry with them the entitlement to settlement has increased from 58,000 in 2000 to 107,000 in the first 11 months of last year, which is a near doubling in seven years. That is a substantial rate of increase.
From some of the rhetoric that one hears from the Government, one suspects that there are elements within the Government that are in favour of economic migration on what they see as economic grounds, although Migrationwatch dealt with that argument with the evidence that it gave to the Committee on Tuesday, which I certainly did not hear successfully challenged.

Damian Green: Under the specific terms of the amendment, Parliament would have a report from the Home Secretary. It would give this Home Secretary, for example, the chance to agree with or repudiate the proposal of his predecessor but one that there was no obvious upper limit to immigration to this country. The Government behave as though they do not believe that any more, but they have never formally said so; the amendment would give Parliament a useful chance to ask the Home Secretary whether he has reversed the Government’s previous immigration policy.

James Clappison: While the Government are answering that, they might also like to answer the question whether they believe that under the points-based system, the number of applications will be the same as it is now, or higher or lower. Perhaps the Minister would like to tell us. Do the Government see the number running at this rate of over 100,000 a year? As I emphasised, I am talking about work permits that carry the right to settlement, which I suspect will be exercised in a substantial number of cases.

David Davies: My hon. Friend is making some excellent and interesting points. Does he feel also that the Government should explain what checks are made on the qualifications that are produced by people who want to come here, particularly in the case of medical practitioners? What safeguards are there to ensure that their documents are valid?

James Clappison: My hon. Friend makes an important point. I will come to it in a moment. I should like to hear from the Government about the migration that they foresee taking place under the provisions. Let us remember that such migration carries with it the right to settlement. The system is called “work permits”, but it is work permits with the right to settle. We are not talking about the number of people coming from eastern Europe; that is a different issue, which is dealt with under European Union treaties.

Eric Illsley: Order. The hon. Gentleman is straying a little bit wide of the clause and the amendment. I remind him that the clause relates to points-based applications and no new evidence, so he is going rather wide of the mark. I should like him to come back to the Bill.

James Clappison: You are absolutely right, Mr. Illsley. We need to know how many applications, and therefore appeals, there will be, and how much pressure there will be on the system. The applications will result in pressure on the system. The Minister needs to deal with this question: how many applications does he foresee under this system?
My hon. Friend the Member for Monmouth has just mentioned the important point of checking the entitlements of the people in question and guarding against forgery. That is very important to the clause, because the Government seem to envisage the system working through a mechanical checking of whether the person ticks the right boxes to accumulate enough points, on the basis of the documents and any other evidence that they produce. The Under-Secretary’s earlier use of the word “objective” echoes the Government’s paper on the matter—the term is used repeatedly, because the Government see what is happening as an improvement on the system—and it is, I think, meant to signal that there will not be as much scope for individual judgment in individual cases, when the person making the decision is not satisfied, after looking at the case in the round and bringing their experience to bear on it, that the application is genuine. 
The Government seem to wish among other things to facilitate such migration and put it on what they regard as a legal basis, although I do not know whether such a basis is a legal requirement. However, I know that it is important that immigration control should be tight and that people should not slip through the system because they happen to tick the right boxes, without their applications being examined for possible irregularities or wrong motivation. I am very worried about problems at that end. There is no use in the Government’s producing proposals for dealing with overstayers and the like if we do not get the first line of defence right. In that line of defence, the interests of immigration control should come before anything else. That necessitates an element of judgment. Of course, if people have a legal entitlement and it is accepted that their application is genuine, they must receive whatever benefits they are entitled to under the Government’s proposals on permission to come to this country, but there must be an element of individual judgment.
 The Government are storing up problems, and things will get even more unsatisfactory as far as appeals are concerned. The Government have already had to withdraw some rights of appeal, which I believe they granted in the first place because the system was being overwhelmed. There is a fundamental problem or disjunction in a system that has what Migrationwatch suggested was, in comparison with those of other countries, a Rolls-Royce appeals system. I should be interested to learn what happens in other countries in this respect. I do not know, but I should not be surprised to learn that our appeals system was far more extensive—a Rolls-Royce in comparison with other countries’ systems.

Damian Green: From my experience—I have visited Taylor house; I spent an interesting day there—if we have a Rolls-Royce system it is a Rolls-Royce without an engine, because however it gleams on the surface, it barely moves. For many people involved, particularly the judges, the system is dysfunctional. There are about 450,000 cases delayed in it, and anything that puts added strain on the system will make a bad situation worse.

James Clappison: My hon. Friend has anticipated my next point, as I was about to say that the Government had set out to create a Rolls-Royce system, but that it turned into an old banger on the way. I think that what my hon. Friend has seen of the system has amounted to a similar experience to mine. I also had the opportunity of visiting a post, seeing the appeals papers piling up, the ping-pong of requests for information between posts, and the delays and all the problems that arise from them. It is all set out in the Home Affairs Committee’s evidence. It is not surprising that Ministers have concluded that they must restrict some rights of appeal.

Stewart Jackson: Does my hon. Friend believe, as I do, that Ministers should consider carefully, when they compile the points-based system, work force needs in key areas, particularly the health service? The Select Committee on Health will report shortly on work force planning. That will make interesting reading, but it is already publicly known that we may have about 3,200 hospital consultants for whom there will be no jobs. Should that be considered in the points-based system?

Eric Illsley: Order. I ask the hon. Gentleman not to respond in too much detail to that, and to come back to the matter before the Committee.

James Clappison: I put it in a way that is highly relevant to this clause. I would like an answer to the point that I put to the Under-Secretary. How wide is the list of occupations under tier 2 for skilled workers? How big a list is that going to be?
I was told by an immigration officer that immigration was all about economics. I think there was a lot in that observation, because there is literally unlimited demand for people to come and work in this country and to enjoy the higher incomes that are available in this country as compared with the lower incomes available in their countries. They are hard-working people and they have laudable motivation but it has to be taken into account whether or not levels of economic migration are sustainable. The level of economic migration into this country today is historically at a higher level than ever, putting it mildly, and that is without any disrespect to the economic migrants themselves, who are extremely hard-working people with laudable motivation. However, other issues arise which, we dealt with earlier. They need to be addressed and all these proposals need to be seen in that context.
We need to have up-front honesty from the Government about this, and answers to the very relevant questions that my hon. Friend the Member for Ashford posed to them. This amendment would provide a means of achieving those answers.

Joan Ryan: I can assure the hon. Member for Hertsmere that he will get nothing but up-front honesty from the Government. I am pleased to say that although I cannot accept this amendment, I do not think that the hon. Gentleman and his party will have any need to require me to when I explain to them that the measures we are taking will meet exactly the requirement that they have outlined with regard to reporting to Parliament. Like them, our view is that all these measures are about creating greater transparency and that should be married to appropriate scrutiny. That is exactly what we are attempting to achieve here and what I think these measures when implemented will do.
We have ranged across the whole of the points-based system and this clause is in fact about in-country appeals, but I will cover some of the points that the hon. Gentleman has made on the points-based system. Suffice it to say that the points-based system is an important policy that we have brought forward, which will help us to ensure that migration to this country meets the needs of this country. It is the case—and the hon. Member for Hertsmere has made the point himself—that, although there is a balance to be struck, there is economic gain to this country from appropriate immigration.

James Clappison: Will the hon. Lady give way?

Joan Ryan: I will give way in a moment.
The points-based system, working in conjunction with the migration advisory committee, is a crucial element which we have not discussed here this morning. I will be careful as I do not want to range outside the scope of the clause. It is very difficult to cover some of the points made by the hon. Gentleman if I do not slightly push the boundaries; I hope that you will bear with me, Mr. Illsley.
The operation of the points-based system with the migration advisory committee is a crucial relationship. When hon. Gentlemen ask how high or low the numbers might be and where the bar will be set, they will know that the migration advisory committee will be in a position to advise on just that and make sure that, whatever the list of occupations and whatever occupations we have skills gaps for, we will be able to use the points-based system to recruit to fill those skills gaps. The points-based system will allow us to be flexible over periods of time rather than be tied to an exact number at an exact point in time. Together the points-based system and the migration advisory committee will ensure that migration meets the economic needs of the UK.
 The hon. Gentleman will also know that with regard to the numbers, whether higher or lower, it will be employers as well as colleges, universities and other higher education institutions that will sponsor applicants from outside the UK coming into the UK. Of course, they will also have a responsibility to ensure the legitimacy of applications. They will subsequently be subjected, as ever, to rigorous checking. There are occasionally issues about that matter in various posts, but the clause is about not out-of-country application but in-country application. Opposition Members may wish to have an annual report that would cover everything, which will indeed be the eventual outcome, but I presume that the report that they are asking for under the clause would be to examine the operation of these measures following the implementation of the points-based system.
 Mr. Clappison rose—
 Damian Green rose—

Joan Ryan: I give way to the hon. Member for Ashford.

Damian Green: It is good to see that deference still operates in parts of the Conservative party.
The Under-Secretary will be aware that we have tabled similar amendments to various parts of the Bill, because we believe in the Government reporting back to Parliament and believe that that should be as widespread as possible. We feel that this clause is so important that such reporting is particularly important under it.
The Under-Secretary’s point about the migration advisory committee is interesting and, in many ways, welcome. Is she saying that it will set overall numbers, or will it just examine individual sectors?

Joan Ryan: I am saying that that committee, whose establishment is imminent, will advise the Government. The responsibility will remain with the Government.

James Clappison: I am grateful to the Under-Secretary for giving way. I did not say that there was an economic benefit from migration, and she must answer the point that was made by Migrationwatch. On the advisory committee, what will its advice be? Will it be a number, or advice on the skills that employers say are needed in the economy? Will the migration advisory committee just be the renamed skills advisory board, which the Government thought about all along and mentioned in their paper?

Joan Ryan: It is good that hon. Members are so interested in how the migration advisory committee will operate.

James Clappison: Oh, we are.

Joan Ryan: It is a very important new measure. It will advise the Government on attributes needed and on what skills shortages there are, and it will be able to gather evidence from employers, businesses, higher education institutions and others. It will therefore be able to inform the Government so that we can make decisions about the categories in the points-based system that are related to our needs. It is clear that the committee and the points-based system will have a strong relationship.
 Mr. Clappison rose—

Joan Ryan: I think I should just answer a few of the points that the hon. Gentleman raised with me earlier before I am overtaken by the paper that is flowing towards me at a satisfying rate of knots.
The purpose of the points-based system is to make the application process much simpler, so reducing the scope for error—a point that has been much raised from the Opposition Benches. Applicants will be told what they need to submit as evidence, and if they do so they will get the points. There will therefore be less scope for discretion and thus less scope for error. I disagree that the changes will require applicants to seek legal advice earlier in the process; in fact, quite the opposite. As the hon. Member for Hertsmere quoted me as saying, they will introduce more objectivity and much less subjectivity into the process, which can only be a good thing.
We are always open to representations from all individuals involved in the process, but I do not agree with the views of the anonymous individual that the hon. Member for Ashford gave us the benefit of hearing. Obviously, everything is subject to review, but it is not our view that the highly skilled migrants programme is working in the way that the anonymous evidence-giver appeared to say.
Much was said about the requirements under the points-based system. The question was asked, what exactly will they be? The exact requirements have not yet been finalised, but the revised immigration rules for the highly skilled migrants scheme set out the sort of evidence that we are likely to require from highly skilled migrants under tier 1 of the points-based system, which will replace that scheme. That includes such things as degree certificates to prove academic qualifications, wage slips to prove earnings and recognised certificates to prove English language ability. Hon. Members may want to see the list in detail. I am happy to be able to tell them that they can find that in appendix 4 to the immigration rules. We are reviewing the effectiveness of the changes to the highly skilled migrants scheme, and as a result of that review the evidence that we require under tier 1 may differ in some respects. However, the highly skilled migrant rules will give the Committee an idea of our thinking.
In respect of students, again the exact requirements have not been finalised, but will not be onerous. Students will need to provide a certificate of sponsorship from their university or college. They are also likely to need evidence, such as bank statements or evidence of sponsorship, to show that they can pay their course fees and maintain themselves within the UK.

David Davies: Will the Under-Secretary take steps to ensure that we see an end to the scandal of offices being set up as supposed language schools or other centres of learning when in fact they are no such thing and are just a front to allow people to get into this country while pretending to be students? I know from personal experience that that practice is extremely widespread. My wife is eastern European and told me that it was a ruse used by many people before the enlargement of the European Union, and it is presumably still going on now for countries outside it.

Joan Ryan: The hon. Gentleman makes an important point. He will know from the discussions that we have had throughout proceedings in Committee that we are doubling our enforcement resource and bearing down on both illegal employment and the kind of practice to which he refers. It is something that we would take very seriously and seek to take enforcement action against, so he can rest assured that enforcement is at the top of our agenda—it is a priority for us. That is evident in the Bill.
I want to give hon. Members some reassurance about how the effects of clause 19 will be scrutinised. They will be scrutinised in the following ways. The independent inspectorate will include a number of key themes relevant to the operation of the points-based system, including its appeals process and the operation of clause 19. The inspectorate will report annually to the Secretary of State, who will have to lay its report before Parliament. For all intents and purposes, that meets the requirements of the amendment tabled by the hon. Member for Ashford and the comments by the hon. Member for Rochdale.
Furthermore, in accordance with Cabinet Office guidelines, our regulatory impact assessment commits us to conducting a post-implementation review of the whole Bill, again including clause 19. We will place a copy of the review’s report in the Library. The further report that the amendment would entail would be unnecessary and would not justify the resources needed to prepare it. However, I hope that what I have said about the annual report, which will be laid before Parliament, will meet the amendment’s requirements.

Damian Green: I am grateful for the Under-Secretary’s last remark. It will be interesting to know how long it will be before we have the impact assessment, and how detailed it will be. I am glad that she has taken note of our point.
 The Under-Secretary started by committing the Government to transparency and openness, a deathbed conversion that will be very welcome if it turns out to be true. However, in the context of those remarks, I observe that she carefully avoided answering the salient point that my hon. Friends and I made about whether the migration advisory committee will advise on the numbers of people who will be allowed to enter in any year.
 The hon. Lady returned repeatedly to the point that Ministers, not the migration advisory committee, would take the final decision. Of course that is the case; advisory committees advise, Ministers decide. But on what basis are Ministers making that decision? Will the advisory committee really say, “We need more nurses, teachers or IT technicians this year,” or will it say, “Overall, we reckon the number for this year is x”? That is absolutely central to the workings of the migration advisory committee and the Under-Secretary notably failed to respond to that point.

James Clappison: In the Under-Secretary’s very patient and generous acceptance of questions, was it not extremely illuminating that in her response on this very point, not only was there no mention of a limit, but there was no mention of any factors to be taken into account by the so-called migration advisory committee other than skills, and what I think will be regarded as employment opportunities? There was no mention of housing, infrastructure or the other myriad factors that should be taken into account in managing migration.
Does my hon. Friend agree that this is a case of the Government renaming what they originally wanted—a skills advisory body, which was in their White Paper—as a migration advisory committee, and pretending that it will advise on migration rather than skills? As the Under-Secretary’s reply made absolutely clear, that is all it will do.

Damian Green: I will not be tempted too far down that route, Mr. Illsley.

Joan Ryan: The migration advisory committee will indeed be about migration; it will not be limited to skills, although they are extremely important. It will consider wider issues but they will be announced at a later date.

Damian Green: I am grateful for that extremely useful clarification.
 The hon. Lady said that the removal of discretion would reduce the error rate in the appeals system under the clause. It is hard to believe that any Minister could make that assertion with a straight face, given the constant stream of abject failures that result from an over-reliance on technology; this may well be another one.
 My hon. Friend the Member for Peterborough mentioned the health applications, which is the most recent example, but one does not need to go beyond the Home Office to know that it has happened before. The search for an automatic, form-filling solution in which everything will go through perfectly smoothly is a chimera. The Government have failed in that search many, many times and the clause is yet another example of it. I fear that, once again, human misery will be increased by that search, as it has been before. Far too often, the individuals involved find themselves faced by a system that appears to them to be Kafkaesque in its inability to respond to individual human circumstances. If the clause ends up by establishing yet another system like that, it will not just be Ministers who regret it but everyone, particularly those who get sucked into having to use this appeal system. I put that warning on the record to Ministers.

Stewart Jackson: I want to reiterate the general comments made by my hon. Friends, but I would also like to make reference to my particular concerns about the points-based system. My comments are based on the experience that I have had as an MP dealing with the issues arising—I put it no more pejoratively than that—from the EU migration from May 2004 onwards.
Two specific points concern me. First, as Sir Andrew Green said in his evidence, the Government and the migration advisory committee will be almost solely driven by large employers and certain sectors—

Eric Illsley: Order. The hon. Gentleman is going far too wide of the amendment and the clause. If he wishes to continue speaking, he must come back to the amendment.

Stewart Jackson: Thank you, Mr. Illsley. Secondly, I am not yet reassured that other factors will be taken into account by the migration advisory committee, which will advise Ministers, in particular the revenue support grant to local authorities that must deal with the issue of the large-scale migration that may occur as a result of this particular points-based system.

Damian Green: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 ordered to stand part of the Bill.

Clause 20

Seizure of Cash

Damian Green: I beg to move amendment No. 150, in clause 20, page 11, line 15, after ‘officer’, insert
‘and a constable in the UK Border Police Force established under section [Establishment of UK Border Police Force]’.

Eric Illsley: With this, it will be convenient to discuss the following: amendment No. 151, in clause 40, page 21, line 41, after ‘constable’, insert
‘, including a constable in the UK Border Police Force established under section [Establishment of UK Border Police Force],’.
New clause 4—Establishment of UK Border Police Force—
‘(1) There shall be a body corporate to be known as the UK Border Police Force.
(2) The UK Border Police Force shall have the functions of—
(a) detecting and removing illegal overstayers;
(b) protecting UK borders;
(c) investigating employers of illegal immigrants;
(d) preventing and detecting human trafficking; and
(e) such other functions as the Secretary of State may by order determine.
(3) Membership of the UK Border Police Force will be comprised of officers from—
(a) the Immigration Service;
(b) HM Revenue and Customs;
(c) the Serious Organised Crime Agency;
(d) specialist port police forces;
(e) the Metropolitan Police Security Command;
(f) the Security Services; and
(g) such other organisations as the Secretary of State shall by order determine.
(4) Before making an order under subsection (2)(e) the Secretary of State shall—
(a) publish proposals;
(b) consult members of the public and stakeholders; and
(c) lay a draft before each House of Parliament.
(5) Bodies to be consulted under subsection (4)(b) shall include—
(a) the Metropolitan Police Commissioner;
(b) representatives of the Association of Chief Police Officers;
(c) the Director General of the Immigration and Nationality Directorate;
(d) representatives of the Serious Organised Crime Agency;
(e) representatives of the Association of Police Authorities; and
(f) such other people as the Secretary of State shall determine.’.
and amendment (a) thereto, leave out lines 2 to 7 and insert—
‘(2) The UK Border Police Force shall have the functions of—
(a) protecting UK borders;
(b) strengthening frontier protection against threats to the security, social and economic integrity and environment of the United Kingdom;
(c) preventing and detecting human trafficking;
(d) maintaining and improving a safe, ordered and secure environment in ports; and
(e) such other functions as the Secretary of State may by order determine.’.

Damian Green: With this group of amendments, in particular new clause 4, we come to the biggest failure of omission of the Bill; it makes several failures of commission, but this is the issue that would be most important in making it defective. We all agree—it is one of the issues that does not divide any of the parties—that we want a robust border system and we want our borders to be policed and guarded much more effectively than they have been in recent years. There is an enormous coalition behind the idea of a specialist border force.

Kitty Ussher: Will the hon. Gentleman give way?

Damian Green: That wins a record for early interventions, but I will happily give way to the hon. Lady.

Kitty Ussher: The hon. Gentleman mentioned his proposals for a border force, which are outlined in the new clause. Why does he think that Migrationwatch, when it gave evidence on Tuesday, as I understand it at the request of his party, said that the last thing that the Home Office should do is have a reorganisation of the kind that he proposes?

Damian Green: I was going to come to Migrationwatch later in my remarks. At this stage, I merely make this observation; if the only body that supporters of the Government can pray in aid for their policy is Migrationwatch, then matters have come to a pretty sorry state for Ministers.
I agree with Migrationwatch on some issues; I disagree with it on some other issues. The fact that the Government can find no one else in the entire world to support their position, other than Migrationwatch, is both noteworthy and fundamentally hilarious. It shows how isolated the Government have become and how desperate Ministers have become.
I turn to the people who have huge expertise in policing, and who are in favour of our proposals. It is clear that any country that is serious about its security—and never has that been more important than it is now—must have properly policed borders. I suspect that Ministers and even the hon. Member for Burnley would agree with that.
 It is also clear that, as a series of islands, the United Kingdom ought to find its borders relatively easy to protect, as compared with countries that have huge land borders, particularly with countries whose economies are much poorer than theirs. That applies to the United States and its southern border, and countries with borders on the eastern edge of the EU. As was mentioned, those borders have moved in the past few years, but the same conditions apply now as applied a few years ago. The overall point remains that Britain ought to be relatively easy to protect, yet we have one of the most inefficient and porous border protection systems in the world. Under this Government, we do not know who is coming in or going out. My party has always found that unacceptable.
 The Under-Secretary is perhaps about to repeat the canard that it was a Conservative Government who removed border controls. I remind the Committee that they took off controls within the EU. It was in 1998—the last time I looked, this Government were in power then—that controls for the rest of the world were removed. That was one of the litany of disastrous decisions on immigration policy that this Government have taken—it must be in the top three worst ones—and is one reason why Britain does not have effective border controls. [Interruption.] My hon. Friend the Member for Peterborough invites me to discuss the notorious case of the one-legged roof-tiler who was allowed into this country, but as it is probably not in order, I will not do so. However, he makes a viable point, and perhaps the Minister should stop giggling, as his predecessor had to resign over the incident. That was one resignation that actually happened.
 The problem is that no single UK-wide force is charged with securing our borders, preventing and detecting illegal immigration and tackling people trafficking. Under the present arrangements, several different agencies are involved, and they report to different Cabinet Ministers. There are six different bodies responsible for one part or another of defending our borders—the immigration service, Revenue and Customs, the Serious Organised Crime Agency, specialist port police forces, the Metropolitan Police Service security command and the security services—so it is not surprising that there are problems. With the best will in the world, such fragmentation of responsibility is likely to lead to problems.
Talking about organisational fragmentation leads directly to the point that Sir Andrew Green made in evidence, which was that at difficult times one should not try to reorganise things. I believe that that was the basis of his argument, because he went on to say that one day a border police force might be useful. Indeed, the Minister seemed half to agree with him in what I thought was one of his more intriguing remarks during the evidence session.
 Sir Andrew Green is perfectly free to make that point, but Ministers are not. In the midst of a crisis at our borders, they are, of course, in the throes of the most enormous reorganisation of the whole immigration department. They are regionalising it for no particular purpose, they are engaging in what is called a transformation programme—what is being transformed is not at all obvious to anyone who deals with the IND—and they are turning it into a shadow agency, which is another intriguing proposition that will produce benefits as yet unquantified by anyone. Ministers are going through three different reorganisations at the same time, so they simply cannot say with a straight face that reorganisation is a bad idea at this time.
There are six agencies dealing with our borders, and it is perfectly clear that the system is not satisfactory. Within those agencies, there are obviously many thousands of people who are, one way or another, responsible for protecting our borders. We seek to bring together those disparate groups of people so that they can be much more coherently managed and so that powers can be shared. At the moment, apart from the fragmentation inherent in the involvement of so many bodies, there is the problem that different people have different powers and that often, particularly at small ports, the relevant collection of powers is not available to provide the degree of protection that people want.
As I said, across the various organisations, border security is dealt with by a nominal total of approximately 10,000 people. They would form the basis of the new force—we seek to co-ordinate them rather than, necessarily, to create more posts.
One of our reasons for proposing a border police force is the experience in other areas of crime prevention. As the Home Office has seen, specialisation of police services is effective in fighting new types of crime. The criminals involved in people trafficking and international terrorism are becoming increasingly vicious and sophisticated, so we need a unified force to detect illegal immigration and prevent the misery of the trade in human beings and the entry into the UK of terrorists or suspected terrorists. We are considering in detail whether the new force should be part of SOCA.
Ministers will be aware that we asked Lord Stevens, as one of Britain’s most distinguished police officers of the past few decades, to look at the details, and we are grateful to him for having undertaken that work. He has said that it is essential that Britain should have secure borders and that one element of that must be a dedicated and effective border police force. He is not the only distinguished police officer who has called for such a force. When SOCA was set up, Sir Ian Blair, the current commissioner of the Met, was quoted as saying,
“it surprised me that we did not have a national border police...I have always thought that having a national border police was a good idea...I am very supportive of this issue.”
Not only are previous and current commissioners of the Met in favour, but the former head of the Association of Chief Police Officers has also called for a single border force. Sir Chris Fox said that a single force would have
“total responsibility for all our points of entry...I think that will make us a far more co-ordinated organisation against criminality and illegal entry...we need all those objectives being brought together with one organisation that makes decisions about when is the right time to act”.
So, many distinguished policemen support the idea, and so does the Home Affairs Committee. In its 2001 report on border controls, it recommended that
“existing border control agencies should be combined into a single frontier force on the basis of secondment and direct employment, but with clear lines of communication back to the parent agencies. Pending the creation of a single frontier force, strategic co-direction of better joint working should be provided by a ministerial group.”
That was six years ago. It called for better co-ordination—the Minister will no doubt argue that that is being provided—as a step towards a unified agency. However, in those six years, the Government have chosen to ignore that wise advice.
Finally, while I am quoting those who agree with us, I welcome the support of the Liberal Democrats, who have tabled an amendment to which, I dare say, the hon. Member for Rochdale will speak. They, too, argue for a truly integrated force. I hope, therefore, that the Committee understands that it would be a coalition of people including some with widely differing views on immigration policy, and various other things that we are discussing, but who are united in their desire for a practical proposal to make our borders more robust. Any country serious about its security ought to have properly policed borders, but ours are not. We are not defended properly against drug dealers, people smugglers, gun importers or terrorists, all of whom find it too easy to bypass the current system.
The Government’s big idea, which I dare say we will hear again, is ID cards, which demonstrates that their priorities are completely wrong. We have seen already from our debates on this Bill that in protecting our borders they would be ineffective and expensive. They would waste up to £20 billion without performing one of the most basic tasks—securing our borders. We think, therefore, that our approach is much more practical and are grateful for the support of many of those with the most expertise in the area. We think that there is an enormous gap in the Bill. If it is aimed at making our borders safer, it will fail in its endeavour, unless the Minister accepts the new clause. I commend my amendments and new clause 4 to the Committee.

David Davies: My colleague on the Front Bench spoke at length, and eloquently and powerfully, in favour of a border security force. I do not wish to reiterate all his points. Obviously, we all agree on the problems with maintaining border controls at the moment—hence the Bill before us.
I visited Cardiff airport recently, at the invitation of customs, to see how they do things. I noticed that there were various organisations with different powers all trying to do essentially the same job—to manage immigration. I have to say that the system seemed to work fairly well in Cardiff, although, obviously, when a politician visits anywhere—[Interruption.] Yes. As we all know, unless we are all completely naive—I am sure that no Member is—when we go on visits, we tend to see what people want us to see and hear what they want us to hear.
I felt, however, that things in Cardiff were working quite well because it is a small airport with a relatively small number of people, all of whom have got to know each other and, therefore, can call upon each other for help when required. Quite often such help is required because an immigration officer with one set of powers sometimes has to ask somebody from passport control, for example, who has other powers, to intervene because they cannot do the same things. I picked up another message: the good working practices that I saw in Cardiff are not present at larger airports, such as Heathrow, or larger ports, where a greater volume of personnel cannot get to know each other in the same way. People do not know each other or who to call when they have a problem. The whole system, therefore, is rather disjointed.

Damian Green: I remind my hon. Friend of a very powerful point made on Second Reading. Cardiff might benefit from being small enough for people to work together, but large enough for them actually to be there. My hon. Friend the Member for Hexham (Mr. Atkinson) pointed out that at Newcastle airport, and others slightly smaller than the one at Cardiff, there is often no protection at all. For many airports in the country it is not a question of whether people work together—there is no one there at all.

David Davies: My hon. Friend makes a good point. Cardiff airport, in effect, had peripatetic customs officers who travelled between Cardiff, Bristol and various other airports and ports. By a remarkable coincidence, it just so happened that, on the day that I visited, a whole minibus full of customs officers turned up. That was very fortunate indeed!
My hon. Friend made a good point: there are not enough people in many smaller ports. Another point raised with me was that the equipment used for screening containers and people—

It being twenty-five minutes past Ten o’clock,The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at Two o’clock.